by Ganesh Sahathevan
Berjaya Group founder Tan Sri Vincent Tan Chee Yioun and Berjaya Land Berhad have demanded a public
apology and RM200mil in compensation from Kedah caretaker Mentri Besar Datuk Seri Muhammad
In his article published in January 2019 edition of the Journal of the Malaysian Judiciary titled Assessment of Damages in Defamation: Reconciling the Irreconcilable? High Court Justice Dato’ Wan Ahmad Farid Wan Salleh said, amongst other things:
In Malaysia, until the judgment in Tan Sri Vincent Tan Chee Yioun v Haji Hassan bin Hamzah & Ors, 3 substantial damages awarded in defamation cases were relatively unheard of.
There is no doubt that Vincent Tan had started the trend of the Malaysian courts granting mega awards to the plaintiffs in defamation cases. This was observed by none other than Gopal Sri Ram JCA (as he then was) in a post-Vincent Tan case of Liew Yew Tiam & Ors v Cheah Cheng Hoc & Ors (“Liew Yew Tiam”)11 when his Lordship said: In the process of making our assessment we have not overlooked the recent trend in this country of claims and awards in defamation cases running into several million ringgit. No doubt that trend was set by the decision of this Court in MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun (supra). It is a decision that has been much misunderstood. At a later part of his judgment, his Lordship further observed as follows at p 395: We would add that we do not regard the affirmation by the Federal Court of the decision in MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun (ibid) as an insurmountable hurdle of binding precedent to our decision in the present case. For, at the end of the day, the Federal Court affirmed the award made in the circumstances of that particular case as a proper exercise of judicial discretion by the High Court upon the question of damages. The Court of Appeal then reduced the sum of RM1.
The aforesaid observation by Gopal Sri Ram JCA (as he then was) was echoed by Abdul Hamid Mohamad JCA (as he then was) in Karpal Singh a/l Ram Singh v DP Vijandran12 (“Karpal Singh”) when his Lordship remarked: Until the arrival of Vincent Tan in 1995, the highest award ever given by the court in this country was RM100,000.00. Vincent Tan sky rocketed the awards. When the award was confirmed by the Court of Appeal, what was an isolated pinnacle in an otherwise undulating plain, the trend is set. When the Federal Court confirmed it, it became a binding precedent in all the courts in this country. But, now the. Court of Appeal in Liew Yew Tiam has had second thoughts about it. The learned judge of the Court of Appeal who wrote the main judgment in MGG Pillai has sought to distinguish MGG Pillai’s case. “It is a decision that has been much misunderstood and the trend should be checked,” he said.
To answer the main question posed in this article: Can Vincent Tan and Liew Yew Tiam be reconciled? If the analysis is made from the perspective of the checklist hereinbefore discussed, the short answer to the question is in the affirmative. What stands out in Vincent Tan is the presence of conspiracy which is conspicuously absent in Liew Yew Tiam. In the premises, until and unless Vincent Tan is specifically overruled by the apex court of the country, the principles stated therein remain the law despite some views to the contrary. Vincent Tan has indeed arrived and it has not departed. It is still the law and if the facts of future cases are in pari materia with the aforesaid case, it is arguable at least, that a court of first instance may exercise its discretion on the principles set out there.
Given the recent announcement by Vincent Tan that Berjaya Land and he have filed suit against the caretaker Menteri Besar Of Kedah, Datuk Seri Muhammad Sanusi Md Nor, demanding an apology and RM 200 Million, Wan Farid J's question can now be resolved before Malaysia's courts.
There is however a complicating factor. Vincent Tan was found, in 2008, by a Royal Commission, to have interfered with the judiciary. His lawyer in the Vincent Tan decision referred to above was reported to have written that landmark decision.
END
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Lingam prepared judgement in Vincent Tan's civil suit12 Feb 2008 12:00 am
©Bernama (Used by permission)
KUALA LUMPUR, Feb 12 (Bernama) –– The judgement in a civil suit awarding RM10 million in damages to corporate figure Tan Sri Vincent Tan Chee Yioun was written by lawyer Datuk V. K. Lingam, the Royal Commission of Inquiry was told today.
Lingam's former secretary, L. G. Jayanthi said it was subsequently incorporated as the official judgment of the then High Court judge, Datuk Mokhtar Sidin who heard the case.
She made this revelation in her statutory declaration which was produced at the inquiry, affirming that the contents of her statutory declaration were true.
Jayanthi, 45, said that between November and early December 1994, she and two other colleagues, Sumanti Jaaman and Jamilah Abdul Rahman who also worked as secretaries for Lingam, were 'detained' by their boss to type a confidential document.
She later discovered that the purpose of their 'detention' was to prepare and type a judgement in relation to a civil suit brought by Tan against seven defendants, namely Haji Hassan Hamzah, Saw Eng Lim, the late M.G.G Pillai, V. Thavanesan, Dr Barjoyai Bardai, Media Printext (M) Sdn Bhd and Ling Wah Press Sdn Bhd.
"Lingam was dictating from some handwritten notes, the draft judgment in that case, for Sumanti to type.
"I was seated somewhere in the vicinity of the office and every now and then, Lingam would order me to get various reported judgements from the library to be incorporated in the judgment," said Jayanthi, adding that the lawyer completed dictating the full judgement about 3am, before the judgement was printed out for Lingam to read.
"Lingam then corrected in red ink on certain pages of the draft judgement such as pages 3,7,9,19,24,28,32,35,39,40,42. Sumanti then did the corrections accordingly, and made a copy of the said draft judgment in a floppy disk which was to be given to Justice Datuk Mokhtar Sidin by Lingam," she said.
Jayanthi said she later discovered that the judgment as was written by Lingam, was fully incorporated as the official judgment of the said judge.
"I must stress here, that when Lingam was dictating the judgment that night, he was aided by his brother, Datuk V.Sivaparanjothi and Adam Bachek and W. Satchithanandan.
"I have kept Lingam's handwritten corrections of the draft judgement in my possession until handing it over, together with the corresponding formal judgement, to lawyer Muhammad Shafee Abdullah on the same date which I handed over the other exhibits," she added.
Questioned by conducting officer Datuk Nordin Hassan on why she kept all documents and photographs of the holiday trip of Lingam and former chief justice Tun Eusoff Chin, Jayanthi said before she resigned from the firm, Satchithanandan advised her to keep all the document because according to Satchithanandan, Lingam was a dangerous and vengeful person.
Jayanthi said Satchithanandan had complained to her that Lingam did not keep his promise to recommend him (Satchithanandan) to the chief justice to be elevated as judicial commissioner, despite having introduced the lawyer (Lingam) to the chief justice.
She said that after leaving the firm, she met Satchihanandan in Penang where he told her that Lingam had recommended Datuk K.L. Rekraj as judicial commissioner, instead of him (Satchithanadan).
Questioned by Rekraj's counsel, David Gurupathan whether she knew for a fact that Lingam had recommended Rekraj to be appointed as a judicial commissioner, Jayanthi replied: "I don't know".
Earlier, she testified that during her tenure with Lingam's firm, Lingam's younger sister, Chinmaya Devi and his younger brother, V.K. Thirunama were working respectively, as accounts clerk and odd job/despatch office worker.
Questioned by her counsel Shafee, on why she left the firm, Jayanthi said she was accused of stealing RM1 million worth of Berjaya Group shares belonging to Lingam as she was in charge of the shares and assigned to send share certificates to a securities company, two floors below Lingam's office.
She said the shares went missing for a while but two weeks later, Lingam called her to say that they (shares) were found and asked whether she wanted to rejoin the company.
Jayanthi said she chose to resign and Lingam acknowledged her resignation.
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